The information revolution and its impact on the employment relationship: an analysis of the cyberspace workplace

“Sparked by new technologies, particularly the Internet, the corporation is undergoing a radical transformation that is nothing less than a new Industrial Revolution.” (1)

I. INTRODUCTION

Some commentators have likened the Information Revolution (2) to the Industrial Revolution. (3) Where the Industrial Revolution offers historical perspective, the Information Revolution is ongoing. Despite this lack of historical perspective, it is already clear that “[t]he advent of the Internet has forced the business world to go through a massive, unprecedented exercise in managing change. Established companies in traditional industries are just beginning to grapple with the nature and magnitude of the changes.” (4)

One of these changes is the impact of the Information Revolution on the employment relationship. This paper analyzes the extent of the Information Revolution’s impact with regard to the adequacy of pre-existing law to regulate the modern cyberspace workplace. While the cyberspace workplace can include a discussion of the rise and fall of “dot.coms,” the focus of this paper is on the working environment and the employment relationship generally, rather than on the information technology industry specifically. Changes in the working environment began as early as the 1960s with a Massachusetts Institute of Technology-based project that enabled computers to interact. (5) The resulting Internet grew exponentially, and by the year 2000, sixty-four million homes used computers. (6) That number is expected to reach seventy-seven million by the year 2004. (7)

Workplaces also began to take advantage of these new Internet opportunities. In 2000, one estimate showed that nearly twenty-one million people worked from home. (8) That number is expected to increase to forty million by 2004. (9) According to a WorldCom study, more than two-thirds of Americans have engaged in virtual work. (10) Had the economy not taken a downturn, by 2002, consultants and contract workers would likely have accounted for half of the hi-tech workforce at large companies with more than $1 billion in revenue. (11) It is in these striking figures that we find the cyberspace workplace–a place where employees and employers utilize virtual work, remote employment and other aspects of employment.

The new cyberspace workplace, however, creates legal uncertainty with regard to the ability of existing legislation to operate in an Internet-enabled environment. We have engaged in an evaluation of the key legal categories most relevant to the employment relationship in cyberspace. Our analysis focuses on different areas of the law in order to ascertain where and if such uncertainty exists.

In Section II we examine the common law implications of how the Information Revolution has led to a new entity we call the cyberspace workplace. We first focus on how the Information Revolution has caused confusion over whether those who work via the Internet are independent contractors or employees. Next, we explore jurisdictional conflicts that occur when the employer and employee are physically separated and, in fact, may be miles apart. In Section III, we discuss the likely evolution of tort claims during and after the Information Revolution. In particular, we focus on invasion of privacy, defamation, intentional infliction of emotional distress, and wrongful discharge. In Section IV, we examine the impact of the Information Revolution on contractual aspects of the employment relationship. We begin by focusing on non-compete agreements and then consider works for hire.

In Section V, we analyze the workability of employment legislation in light of new cyberspace working conditions. In particular, we examine how anti-discrimination legislation (12) functions in an Internet-enabled workplace. We then explore the cyberspace employer’s obligation to reasonably accommodate under the Americans with Disabilities Act (ADA). (13) Next, we analyze the Family Medical Leave Act’s (FMLA) (14) leave time and coverage obligations. We then examine the potential workers’ compensation liability for cyberspace employers. The next section explores wage and hour requirements in cyberspace as mandated by the Fair Labor Standards Act (FLSA). (15) We follow with a discussion of organization in the cyberspace workplace under the National Labor Relations Act (NLRA). (16) Finally, we examine what the workplace safety requirements may be under the Occupational Safety and Health Act (OSHA). (17)

While the Information Revolution creates new opportunities for communication, supervision and working environments, it may also undermine employee rights, employer obligations or at least our understanding of both. Accordingly, we have undertaken the following effort to analyze where our understanding of employee rights and employer obligations strains so that we can begin investigating when and where employment law must evolve. We conclude by evaluating how to respond to the gaps the Information Revolution creates in employment law.

II. COMMON LAW OF THE INFORMATION REVOLUTION ON THE CYBERSPACE WORKPLACE

In this section, we explore the Internet’s impact on the workplace by examining how technology-enabled working relationships challenge the rules of jurisdiction and employee classification. The Internet allows for remote employment which can be beneficial in terms of reduced costs, increased productivity, and a larger labor pool. (18) Remote workers may, however, find themselves operating in a gray area between employee and independent contractor. (19)

The question of whether a worker is classified as an independent contractor or an employee is often controversial. (20) To resolve this controversy, some courts have applied the traditional right-of-control test to determine when an employee is an independent contractor. (21) Under the right-of-control test, an employee is not an independent contractor if the employer has the ability to control the time, method, and manner of employment. (22)

In cyberspace, controlling the time, method, and manner takes on new meaning because remote employment blurs the distinction between employees and independent contractors. In determining whether an employment relationship exists, control is a critical factor, but courts also look to the employee’s “opportunity for profit or loss depending on his or her managerial skill

An employer’s control over a remote employee is less than the control over an employee at its actual workplace. Also, remote employees often own their own computers and equipment and may set their own working hours. (24) Courts must now determine whether remote workers’ self-control distinguishes them as independent contractors or whether they should continue to be classified as employees despite their independence.

The explosion in the number and types of service industries,
especially over the past thirty years, has diminished the
effectiveness of the [right-of-control] test. Today, service
providers offer highly skilled technical expertise or specialized
intellectual talents that serve the general objectives of the
employer. Yet such skills and talents, as well as the performance
of the task, remain under the exclusive control of the worker.
Moreover, the advent of modern technology allows workers to complete
tasks at places removed from the employer’s business site.
‘Tools of the trade,’ once applied to hammers, saws, and chisels,
now includes such equipment as computers, copiers, telephones, and
facsimile machines. Many modern service-sector jobs [therefore] defy
pigeonholing. (25)

The question of whether a remote worker is an employee or an independent contractor has direct legal implications for employers who seek to avoid penalties and liability. Like all employees with alternative working arrangements, remote employees often disagree with their employer as to whether or not they are entitled to employee benefits. (26) The Internal Revenue Service (27) uses the same right-of-control test used by the courts. (28) When workers are found to be misclassified, employers often receive heavy penalties and fines for various reporting errors including income, deductions, retirement plan distributions, and income taxes. (29) The Internet has stretched employment boundaries even further as more than twenty million workers are part of a “contingent” workforce that still has not been definitively classified. (30) Until there is some consensus on how remote employment affects classification, rights and obligations for both employers and employees will remain unclear. (31)

Another area lacking clarity is jurisdiction and venue for cyberspace workplace disputes. Jurisdiction is an underlying issue important in its own right but perhaps more important in the way it affects other cyberspace-based common law claims. In fact jurisdiction in light of the Information Revolution is an important enough issue to warrant an American Bar Association (ABA) investigation and analysis. (32) Stock option disagreements, (33) layoffs, (34) torts (35) and wrongful discharge (36) are suits that have arisen in new ways. Suits addressing the impact of cyberspace in general on jurisdiction have also arisen. These suits analyze issues such as “cyberpiracy,” (37) deceptive advertising, (38) and “hacking.” (39) Some suits, however, are reflecting that jurisdiction issues and employment issues will increasingly overlap in the cyberspace workplace with emphasis on claims of wrongful discharge (40) and libel. (41) Jurisdiction over such disputes is typically noncontroversial in a traditional employment relationship where one simply looks for the territory’s power to call the parties into court. This power is based on presence in the state, (42) a minimum contacts analysis under which it is fair to call the parties into court, (43) or a long-arm statute permitting a court to reach parties outside the territory. (44) The Supreme Court has established the principle that personal jurisdiction requires purposeful availment by the defendant, (45) as well as the principle that mere placement of a product in the “stream of commerce” is insufficient and does not enable the court to exert jurisdiction over the parties. (46)

Applying this standard to cyberspace has challenged courts since the Internet’s inception. (47) We find no case law directly establishing a test for Internet jurisdiction for the cyberspace workplace. Some courts have found that the minimum contacts test applies to online relationships and is, therefore, sufficient to establish the court’s jurisdiction over the parties. (48) Other courts have split between two different views on Internet jurisdiction: a virtual presence approach and a single point presence approach.

Under the virtual presence approach, once a person places information on the Internet, that person is “present” everywhere the information is available and therefore can be called into court anywhere the information travels. (49) In Inset Systems, Inc. v. Instruction Set, Inc., (50) the district court held that the defendant purposefully availed himself of the jurisdiction by placing his advertisement over the Internet, thereby directing his presence at the forum state. The court also found that the use of a 1-800 number listed on the website confirmed this purposeful availment. (51)

On the other hand, the single point presence approach dictates jurisdiction depending upon the manner in which contact with the forum occurs. (52) The courts analyze the nature of Internet contact using a “sliding scale.” (53) At one end of the scale is the defendant who conducts business over an interactive website that encourages consumers to transmit data. The court is more willing to find that this defendant has purposefully availed himself of the jurisdiction by “deliberately and repeatedly” transmitting information into the forum state. (54) At the other end of the scale is the defendant whose website simply contains information. Because such websites are not interactive, some courts have held that the defendant has not purposefully availed himself of the forum state. (55)

Regardless of which test courts ultimately use, we must ask the fundamental question whether the presence of a remote employee in a territory is sufficient contact to establish jurisdiction. Having traditional offices in a territory is certainly minimum contact. Whether having an office that houses the electronic connection between the employer and remote employee satisfies this minimum contact requirement is less clear. In analyzing minimum contact for remote workers, courts may look at the level of interactivity between the employer and the employee in much the same way as they have for consumers who access websites. Courts may opt instead to look at the level of benefit derived by the employer who has the remote employee in the forum state, or they may create a test previously unforeseen–only the continued progression of the Information Revolution, combined with the establishment of precedent, will resolve this issue.

III. THE EVOLUTION OF TORT CLAIMS DURING AND AFTER THE INFORMATION REVOLUTION

As the Information Revolution progresses, employees have increasingly brought claims against their employers for invasion of privacy, defamation, intentional infliction of emotional distress, interference with contractual relations, and wrongful discharge. While these torts are not new, developing technology is likely to complicate and increase the frequency of these claims.

A. Invasion of Privacy

Claims for invasion of privacy in the workplace are generally based on either intrusion on seclusion, public disclosure of private facts, or false light. (56) The tort of intrusion on seclusion consists of intrusion into a matter in which the employee has privacy (i.e., the employer has no legitimate interest) and by means that would be objectionable to a reasonable person. (57) Traditionally, intrusion into seclusion claims have arisen where employers have searched lockers or work areas, monitored phone calls, or installed video surveillance. (58) However, because courts have recognized a diminished expectation of privacy in the workplace, claims for this tort typically lie only where the matter intruded upon is intensely private. (59) Cases have surfaced in which employees have sued their employers for intrusion into seclusion for monitoring e-mail or Internet use. (60) Courts have held that there was no reasonable expectation of privacy in most cases. (61)

Intrusion into seclusion claims will likely persist and become more common as workers become increasingly dependent on technology to perform their jobs, and employers have a proportionate need to prevent the abuse of such technology. The Information Revolution has brought more sophisticated methods of screening and monitoring employees, enabling employers to obtain more information about employees than ever before. (62) New products such as SurfWatch Professional Edition enable employers to monitor employee Internet use. (63) Employees, however, are typically not happy about such monitoring

A second type of invasion of privacy claim is for public disclosure of private facts which requires unreasonable publicity of private information. (67) For example, employees have sued their employers for disclosing medical conditions (68) and sexual orientation. (69) Due to emerging technology, cases will likely arise involving personal information made available on the Internet or disclosure of private facts via e-mail. (70)

The third type of invasion of privacy is false light “whereby the offensive publicity attributes to the plaintiffs characteristics, conduct, or beliefs that are false, such that the plaintiff is placed before the public in a false position.” (71) Although not in an employment setting, courts have dealt with false light claims involving e-mail or Internet communications. For example, in Eberhardt v. Morgan Stanley Dean Witter Trust FSB, (72) the plaintiff alleged that Morgan Stanley sent an e-mail to its employees notifying them that the plaintiff could not give a seminar to employees and portraying the plaintiff as dangerous. (73)

In addition to focusing on common law theories, it is worth mentioning the more limited availability of constitutional and statutory claims for invasion of privacy. The Fourth Amendment provides constitutional protection for employees against unreasonable searches of electronic communications and stored data. A Fourth Amendment claim will generally be analyzed with regard to the following factors: 1) whether the employee has a reasonable expectation of privacy

Likewise, Congress enacted the Electronic Communications Privacy Act of 1986 (ECPA), (76) to protect electronic communications. ECPA states that the provider of the e-mail service can monitor communication, and that monitoring can occur in the ordinary course of business. (77) Case law interpreting ECPA is virtually uniform in finding that employers can monitor with or without consent, even without notice. (78)

Nonetheless, employers protect themselves best in the cyberspace workplace by having e-mail policies and preventative measures in place to avoid e-mail and Internet abuse. (79) In 1998, one survey showed that employees spend 75.5% of their online hours in workrelated activities and the remaining 24.5% of their time online searching news, pornography, investment, entertainment, and sports sites not in support of the employer’s business. (80) One study shows that personal computer use among telecommuters rose from 59% to 75% between 1995 and 1997. (81) Given these statistics, it is understandable why the employer would wish to monitor employees’ use of Internet and e-mail communication for both productivity and liability issues. Employers cite potential liability for unintended or unwanted dissemination of unendorsed information, with risk of liability for sexually inappropriate e-mail and Internet use at the top of the list. (82) Despite employers’ potential liability, employees remain concerned that monitoring can and does go too far. Improvements in both technology and judicial precedent are likely to help strike the balance between employers’ fear of liability and employees’ expectation of privacy.

B. Defamation

Another tort claim likely to evolve in the Information Revolution is defamation. In order to allege defamation, the employee must show that the employer published information that would tend to lower the community’s estimation of the employee or otherwise harm the employee’s reputation. (83) In defamation, it is sufficient to publish the information to one other person

An employer may defend against a defamation suit by showing that the information is in fact true, or that the employee gave the employer permission to publish the information. For example, in Blakey v. Continental Airlines, (86) a female pilot won a libel claim for comments posted on a pilots-only electronic bulletin board. While the court ruled in favor of Blakey, they did not undermine the longstanding defenses of truth or permission to publish the information. (87)

Defamation suits involving e-mail are also arising. In Meloff v. New York Life Ins., (88) an e-mail stating an employee’s termination resulting from fraud against the employer also resulted in a finding in favor of said employee that his defamation claim presented triable facts. (89) While these cases do not necessarily present new criteria for alleging defamation, they demonstrate new ways in which technology facilitates defamation liability.

A familiar concept in defamation law is the single publication rule, (90) originally applied to newspapers and magazines and, later, to books. (91) At least one court has extended the single publication rule to apply to Internet postings, including postings at work. (92) While the law of defamation is unlikely to change, the opportunity to make defaming statements increases as the means of publication evolves technologically.

C. Intentional Infliction of Emotional Distress

An employee may claim intentional infliction of emotional distress if he or she can show 1) intentional or reckless conduct

Thus, if information is disseminated or allegations released in a widespread manner that technology enables, a mere defamation claim may become sufficiently outrageous to constitute intentional infliction of emotional distress. In contrast, as employees become more capable of disrupting employers’ technology from the inside, employers may have intentional infliction of emotional distress claims.

D. Wrongful Discharge

Employees may also bring a claim for wrongful discharge in violation of public policy. (97) However, not all jurisdictions allow this tort. (98) Those states that recognize the claim rely on varying standards of public policy. Some courts permit public policy claims for violations of ethical duties

Thus, when analyzing a wrongful discharge claim, the first issue is the source of the public policy. There are four basic per se categories in which the court will protect an employee: 1) whistleblowing

In the cyber-workplace arena, wrongful discharge claims have met with similar difficulty. In Smyth v. The Pillsbury Co., (101) the court rejected the plaintiff’s claims that his termination was both a wrongful discharge in violation of public policy and an invasion of privacy. (102) In that case, the employer assured employees that e-mail communication would be confidential and would not be monitored or intercepted, nor would the employer use e-mails against employees for discipline or termination. However, the plaintiff sent threatening e-mails and was subsequently fired. Despite the employer’s promise of confidentiality, the court held that there was no reasonable expectation of privacy in the e-mail communication, and the plaintiff had voluntarily sent the messages. In addition, the employer’s interest in preventing inappropriate e-mail outweighed any privacy interest. Because the employee’s privacy interests were not breached according to the court, the employee was not wrongfully discharged.

Interestingly, the Smyth case relied upon Borse v. Piece Goods Shop, Inc. (103) in considering whether invasion of privacy can give rise to a claim of wrongful discharge. The Court of Appeals noted that when a wrongful discharge claim is based upon an invasion of the employee’s privacy, the claim must be examined by determining whether the invasion is “substantial and highly offensive to a reasonable person.” (104) The Borse analysis is likely to arise again and again as e-mail communication increases along with the monitoring of that communication. (105)

IV. THE INFORMATION REVOLUTION’S IMPACT ON EMPLOYMENT CONTRACTS

While the Internet has had an impact on the formation and enforceability of all contracts, it has had a specific effect on two types of employment contracts: non-compete agreements and contracts to work for hire.

A. Non-Compete Agreements

A non-compete agreement is the employee’s contractual promise to refrain from engaging in business similar to the employer’s or from working for an employer’s competitor. (106) “In a service-driven economy, the ability ora business to protect its investment in human resources, customer relationships, and confidential business information is critical to ensuring continued economic viability.” (107) Covenants not to compete provide such protection. With the increase in employee mobility, the globalization of product markets, and the thrust of technology, the need for such protection is more pressing than ever and the use of non-compete agreements is more prevalent. (108)

However, covenants not to compete are essentially contracts in restraint of trade, which leads to limited enforceability. (109) State law determines whether a non-compete is enforceable. (110) California, for example, arguably the hub of the information industry, has outlawed these agreements in most circumstances. (111) Other states only enforce them in certain circumstances, and still other states enforce any reasonable covenant. (112) Reasonableness typically refers to duration, geographical area, and type of activity. (113) Courts largely enforce only those non-competes that limit competition to places where the employee actually performed services for the employer. (114) Although a majority of states rely solely on the common law to shape precedent and policy in this field, a significant minority have enacted specific statutes of general application for guidance. (115)

Non-compete agreements create tension between the reasonableness of the employer’s interest in maintaining proprietary information and the employee’s need to earn a livelihood. (116) The Internet exacerbates this tension by raising previously unheard of issues in drafting and enforcing non-compete agreements. One such source of tension exists with respect to geographic restraints. “The Internet allows a business to have a global customer base. Because of this … limited geographic restrictions prove ineffective. Unfortunately, employers face another dilemma when they draft extended geographic restrictions that encompass states which do not enforce covenants not to compete.” (117) Therefore, restrictive covenants, on the whole, need to be drafted ever more narrowly due to the Information Revolution and the increasing number of businesses reliant on technology.

Another source of tension in enforcing non-compete agreements is time restraints. A recent court decision in New York (118) provides a likely trend in judicial interpretations of temporal limitations in the technology sector. In November of 1999, the district court in New York held that a non-compete agreement restricting employment for a period of one year was “too long given the dynamic nature of this industry, its lack of geographical borders, and [the employee’s] former cutting-edge position with EarthWeb where his success depended on keeping abreast of daily changes in content on the Internet.” (119) Before the Information Revolution, a one-year restriction was not controversial.

Restrictive covenants protect employers, but only if they are enforceable in an environment that equally protects employees’ ability to work. Striking the balance between employers and employees becomes increasingly difficult under the influence of the Information Revolution. As the Information Revolution minimizes geographical boundaries between states and makes the concept of time accelerate, previous concepts of enforceable non-compete agreements will necessarily change. (120)

The realities of working and developing skills within the Information Revolution, however, may ultimately trump concerns over enforceability. Employees in the new economy have the opportunity to develop unique knowledge and strategic insights related to working in a cutting edge industry. For example, Amazon.com is testing the current applicability of noncompetes in its effort to prevent a former executive from defecting to eBay Inc. (121) The other side of the same coin involves a downsized contractor with a unique skill set whose ability to find new employment is impeded by a noncompete clause. (122) Ultimately the burden rests on employers to find the balance necessary to protect their interests as those interests evolve in the Information Revolution.

B. Work for Hire Contracts

The Copyright Act stipulates that in an employee-employer relationship, for ownership to vest in someone other than the creator, specific conditions must exist, including the presence of a signed, written agreement between the parties that the work is made for hire. (123) The “work for hire” doctrine is a narrow exception to the grant of ownership a copyright gives to a work’s creator or “author.” (124) Ownership rights do not vest in the creator but, instead, go to either: 1) the employer whose employee created the work within the scope of his/her employment

In 1989, in Community for Creative Non-Violence v. Reid, (126) the Supreme Court addressed the work for hire doctrine, and laid out a specific test for determining the employer-employee relationship. (127) Pursuant to that decision, in most cases, traditional employer-employee relationships will trigger the work for hire exception to the rule that the creator is the owner of the copyright in the work. (128)

In the Information Age, with its exponential increase in the number of independent contractors, ownership of creative works becomes more critical because independent contractors may, in fact, have ownership rights. In particular, many high-tech companies rely heavily on their intellectual property for asset valuation as the economy becomes less supportive. (129) There are, nonetheless, companies that are unaware of the fact that the computer programs and other intellectual property they produce and sell have copyrights vested in the creator and not the company. (130) Expanded use of work for hire agreements to ensure ownership, as well as subsequent scrutiny of those agreements, is a likely outcome of the Information Revolution.

V. EMPLOYMENT REGULATION CHALLENGES PRESENTED BY THE INFORMATION REVOLUTION

As the workplace evolves in response to the Information Revolution, the regulation of that workplace will also likely evolve. In the following section, we examine the potential growth of seven regulatory frameworks for Information Age working conditions. We begin with anti-discrimination protection under Title VII. We then address disability issues under the ADA. We next examine leave time as provided by the FMLA. We then consider the potential workers’ compensation liability for cyberspace employers. The next section explores wage and hour requirements in cyberspace as required by the Fair Labor Standards Act (131) (FLSA). We follow with a discussion of the NLRA. Finally, we explore safety under OSHA.

A. Title VII in the Cyberspace Workplace

Title VII has grown into a highly technical legislative response to discrimination at work. (132) Its standards for discrimination have made employers more likely to bear liability for discriminatory behavior. (133) The standards for liability have not yet evolved to address when and if discrimination occurs in the Information Age. We must, instead, estimate the latter from Title VII’s evolution thus far to determine how it will apply in future cyberspace workplaces.

Employer liability evolved from its origins in the Fourteenth Amendment to the passage of Title VII of the Civil Rights Act. (134) Employer liability evolved further when Congress passed the Civil Rights Act (CRA) of 1991. (135) The CRA of 1991 deterred discriminatory conduct by providing compensatory and punitive damages for disparate treatment lawsuits brought by private plaintiffs. (136) Congress enhanced “Title VII’s remedial scheme to provide monetary damages for intentional gender and religious discrimination. Monetary damages simply raise the cost of an employer’s engaging in intentional discrimination, thereby providing employers with additional incentives to prevent intentional discrimination in the workplace before it happens.” (137)

Congress’ efforts to curb discrimination will continue in the face of workplace changes brought by the Information Age. Discrimination based on race, color, religion, and national origin remain critical areas of attention in the enforcement of Title VII. (138) Our research, however, did not reveal any actual or potential impact on the type or amount of discrimination suffered due to race, color, religion, or national origin because of increased use of Internet resources and other new technologies.

On the other hand, gender discrimination and sexual harassment are expanding in the cyberspace workplace. Before the Information Revolution, courts molded and empowered Title VII’s interpretation to curb sexual harassment. (139) Courts recognized that “quid pro quo” sexual harassment–the demanding of sex as a condition for receiving job benefits–violated Title VII. (140) Employment discrimination law further evolved with Meritor Savings Bank, FSB v. Vinson, (141) in which the Supreme Court held that Title VII also encompassed “hostile work environment” harassment. (142)

The Supreme Court again evaluated what constitutes sexual harassment when it decided Burlington and Faragher on the same day in 1998, (143) stating that “an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct, as well as that of a plaintiff victim.” (144) The Court relied on Harris v. Forklift Systems, Inc, (145) which held that “a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” (146)

Courts must determine whether an environment is sufficiently hostile or abusive by “looking at all the circumstances,” including the “frequency of the discriminatory conduct

Burlington and Faragher brought gender and sexual harassment law to a modern standard. (150) The Court stated that the distinction between the terms “quid pro quo” and “hostile environment” was not controlling for purposes of determining employer liability. (151) The Court reasoned that the determinative factor was whether “tangible employment action” had occurred. (152) If the harassment did not culminate in a tangible employment action, the employer might have an affirmative defense. (153) The affirmative defense has two elements: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” (154) If a tangible employment action occurred, the defense is not available. (155)

The outcome in Faragher and Burlington is a new liability standard: an employer is vicariously liable for a supervisor’s sexual harassment that creates a hostile environment so long as the harassment is pervasive. When no tangible employment action is taken, an employer may raise the two-pronged affirmative defense of the employer’s reasonable care to prevent and promptly correct harassment and of the employee’s unreasonable failure to avoid harm. No affirmative defense is available when the supervisor’s harassment culminates in a tangible employment action. (156)

The Burlington/Faragher ruling in combination with the affirmative defense offer a clear standard of liability. (157) The standard’s applicability to cyberspace working conditions, however, does not offer the same clarity. With the dramatic increase of Internet and e-mail use, new types of behavior that may constitute harassment are created. For example, employees might download pornographic websites and have the pictures displayed on their computers or might send obscene e-mail to co-workers. In Burlington, the plaintiff complained of sexual remarks and unwanted contact. (158) Similarly, in Faragher, the plaintiff complained of repeated uninvited touching and lewd comments. (159) While inappropriate or offensive remarks can and do take place over the Internet and e-mail, the combination of continual remarks and touching cannot. In an Internet-enabled workplace where there may be physical separation between employer and employee, the shift of emphasis to that of verbal harassment becomes imperative in the determination of liability.

The first determination a court must undertake is what constitutes a tangible adverse employment action. The Eleventh Circuit Court of Appeals, for example, assumed the existence of a tangible employment action when a complaint was based on the plaintiff’s termination. (160) Constructive discharge also constitutes tangible employment action. (161) There is no precedent that addresses whether tangible adverse employment action can take place over the Internet. It seems reasonable that it could. For example, if a supervisor terminates an employee through an e-mail communication, the electronic nature of the firing makes it no less tangible.

In the absence of an e-mail specifically terminating an employee, the question of whether e-mail communication can rise to the level of harassment divides the courts. In Schwenn v. Anheuser-Bush, Inc., (162) the plaintiff brought a sexual harassment claim based on a series of sexually explicit e-mails she received over the course of three weeks. (163) The court granted summary judgment, holding that the e-mails were not sufficiently severe or pervasive. (164) In distinguishing the facts at hand from those that create liability, the Schwenn court cited several previous cases, all of which included physical contact. (165)

While the Schwenn case may demonstrate a limited ability to incur sexual harassment liability from e-mail, using e-mail to overcome a motion for summary judgment is apparently easier. In Petersen v. Minneapolis Community Dev. Agency (166) the plaintiff reported unwelcome physical advances, which later stopped. However, inappropriate e-mails continued which supported the plaintiff’s claim. Similarly, in Strauss v. Microsoft Corp., (167) the court found that a supervisor’s inappropriate behavior, both in the office and in sending e-mails, constituted evidence from which a jury could conclude that the supervisor failed to promote the plaintiff as a result of gender discrimination. (168)

One case goes even further than summary judgment by holding in favor of the plaintiff for a related form of electronic communication. In Blakey, (169) female pilot for Continental Airlines complained of sexual harassment based on comments, inter alia, posted on an electronic bulletin board available only to Continental pilots. (170) The New Jersey Supreme Court found in favor of Blakey, holding that while the bulletin board was not under the physical control of the employer, it was sufficiently related to the workplace in order to create liability. (171) While the question of whether electronic communication creates liability is not clearly answered, employers are not ignoring the risk. Four employees sued a subsidiary of Chevron Corporation for e-mails containing jokes such as “twenty-five reasons beer is better than women.” (172) Chevron settled the case for two million two hundred thousand dollars. (173) Similarly, The New York Times fired two dozen employees for sending potentially offensive e-mails. Approximately twenty more workers received warnings. All of the affected employees were in good standing at the company. (174)

Courts’ hesitation to find liability for electronic communications as compared to the readiness of employers to engage in large private settlements leaves both employees and employers unsure about their rights and obligations concerning e-mail communication. However, if we assume that even the possibility of liability exists in the Information Age workplace, we must also evaluate the viability of the affirmative defense. If there is no tangible adverse employment action, employers can use the affirmative defense, leaving courts to determine whether the defense is satisfied. (175) As previously discussed, the two prongs of the affirmative defense are as follows: first, the employer must exercise reasonable care to prevent and promptly correct any sexually harassing behavior

Regarding the first prong, the employer’s obligation to prevent harassment largely rests on the implementation of an anti-discrimination policy. (177) The first prong of the affirmative defense is often satisfied by implementing a sexual harassment policy that includes a complaint procedure. It may also be satisfied by the prompt investigation and remedying of any sexual harassment once the employer is aware of the harassment. (178)

While questions of how the affirmative defense affects policies and preventative measures involving cyberspace are being decided, an employee still has the obligation to report harassing behavior. An employee’s unreasonable failure to use corrective measures will satisfy the second prong of an employer’s affirmative defense. The Seventh Circuit Court of Appeals, for example, required a plaintiff to report alleged harassment to someone “who could reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it.” (179)

While no precedent has yet addressed cyberspace employees directly, the Ninth Circuit held that remoteness will not dilute an employee’s obligation to report sexual harassment. (180) The court rejected the plaintiff’s claim that the affirmative defense was unavailable simply because the location in which she worked was “isolated” geographically from the company’s upper level management. (181) The court held that in Faragher, the plaintiff was not geographically isolated but, rather, “the defendant’s organizational structure prevented the plaintiff from complaining directly to higher management about the … harassment.” (182) The court declined to recognize similar difficulties with the subject plaintiffs circumstances. Ultimately, the second prong of the affirmative defense is often met by demonstrating the employee’s failure to follow the established complaint procedures. (183) The physical distance found in an Internet-enabled workplace would not appear to alter the employee’s obligations.

B. The Americans with Disabilities Act in the Cyberspace Workplace

The ADA is meant to both integrate disabled citizens into the mainstream of society and the workplace and prevent discrimination. (184) Of the ADA’s four titles, Title I is most relevant to workplace issues. (185) It prohibits discrimination against a qualified individual (186) in connection with: 1) a job application

ADA protections are only afforded to those who are deemed “disabled” under the Act’s provisions. (190) However, the definitions of “disabled” are expansive and provide millions of Americans with a cause of action. (191) For ADA purposes, a disability is “(1) [a] physical or mental impairment” (192) that substantially limits one or more of the major life activities of such an individual

The first method of proving disability is to establish a substantially limiting physical or mental impairment. A physical or mental impairment is “substantially limiting” if it makes an individual unable or significantly restricted in performing a major life activity. (196) Using these factors, the individual must show “significant restriction in the ability to perform either a class of jobs or a broad range of jobs in various classes … to prove substantial limitation.” (197) The second method of proving disability applies to those individuals with a record of impairment. (198) For example, someone who has recovered from a previous injury may still be disabled under the ADA. The final method of proving disability occurs when others regard the individual (i.e., “perceive” them) as having an impairment. The United States Supreme Court has held that one who is perceived by others as disabled may, in fact, have undiminished physical and mental capabilities, but could nonetheless suffer substantial limitations in their ability to work due to the negative reaction of others. (199)

In order for employees to establish a need for ADA disability protection, they must show that they can perform the job with reasonable accommodation. If the employee’s disability limits his or her capacity to undertake the physical steps to turn on a computer, connect to the computer, and use the computer for work, the employee would be entitled to ADA protection.

Courts and commentators have already begun scrutinizing the applicability of the ADA’s reasonable accommodation provision in the Internet-enabled workplace. (200) Described by commentators as “one of the most vague provisions of the ADA,” (201) the reasonable accommodation provision requires employers to change the work environment so that disabled individuals can enjoy equal employment opportunities. (202) To comply, an employer can make existing facilities readily accessible to disabled individuals, restructure jobs, modify work schedules, make reassignments, acquire or modify equipment or devices, and adjust examinations or training materials. (203) Alternatively, employers may allow disabled employees to work from home. In fact, the Equal Employment Opportunity Commission (EEOC) has indicated that telecommuting, only a recent available option, is no different from any other reasonable accommodation, thereby requiring the employer to offer a work-at-home option unless it would impose an undue hardship. (204)

Many courts concur. The D.C. Circuit held that government agencies must consider work-at-home options equally with other accommodations. (205) The Northern District of California similarly held that whether a manager could perform her job from home was a jury question. (206) In Waggoner v. Olin Corp., (207) the Seventh Circuit stated that for some jobs, “working at home for a time might be an option.” (208)

However, several courts disagree with the EEOC and the above decisions. In an apparently conflicting holding, the Seventh Circuit in Vande Zande v. State of Wisconsin Dep’t of Admin., (209) rejected an employee’s claim that her disability entitled her to a work-at-home accommodation. Holding that most jobs entail “supervision” and “teamwork,” the court stated that “it would take a very extraordinary case for the employee to create a triable issue of the employer’s failure to allow the employee to work at home.” (210) Courts following the Vande Zande decision may ultimately change their opinions as increasing evidence of telecommuter stability and productivity come to light.

C. The Family Medical Leave Act in the Cyberspace Workplace

Congress passed The Family Medical Leave Act (FMLA) (211) in response to the increasing number of single-parent households and two-parent households in which both parents are employed. (212) A worker who wishes to take FMLA leave must establish that he is an employee and not an independent contractor because contractors receive no FMLA protection. (213) FMLA protections also only apply to employers with at least fifty employees within seventy-five miles of the employer’s worksite. (214) The employer’s worksite need not be one particular location as long as the fifty employees are working within seventy-five miles of the principal place of business. (215) In the Information Age, however, a worksite has the potential to spread much further than seventy-five miles. (216)

Department of Labor (DOL) regulations, adopted as part of the FMLA anticipate remote work and virtual offices. The regulations state that “an employee’s personal residence is not a worksite in the case of … employees who work at home…. Rather, their worksite is the office to which they report and from which assignments are made.” (217) If, however, there is no fixed location to which the employee reports or from which assignments are made, the DOL regulations provide no protection and it appears that the employee would not be eligible for benefits. This gap may leave some cyberspace employees without FMLA protection.

However, if employees are within seventy-five miles of the employer’s worksite, logically, they are eligible for benefits. The FMLA provides family or medical leave to eligible employees under four circumstances: 1) the birth of a son or daughter of the employee and the subsequent care for the son or daughter

A “serious health condition” is a broadly construed term that includes illness, injury, impairment, and physical or mental conditions that involve the following: 1) inpatient care in a hospital, hospice, or residential medical care facility

FMLA leave can be taken intermittently or on a reduced leave schedule. (222) Intermittent leave is taken in separate blocks, while a reduced leave schedule results from a change in full-time to part-time employment. (223) An employee may take intermittent leave where it is “medically necessary” to care for a serious health condition. (224) In addition to burdensome administration, human resource professionals cite the difficulty managers face following their employees’ whereabouts, staffing temporarily vacant positions, and managing reduced productivity. For those employees who work remotely or in virtual offices, tracking intermittent leave time would be extremely difficult

D. Workers’ Compensation in the Cyberspace Workplace

Workers’ compensation is a state-based statutory system that provides medical benefits and income replacement for employees who suffer work-related injuries. (225) Workers’ compensation is a no-fault system in which employees recover regardless of their own contributions. (226) As long as the employee’s injury “arises out of and in the course of employment,” the employee can access the workers’ compensation system. (227)

The “arising out of and in the course of” test has already faced scrutiny for non-workplace injuries. For example, employees whose job includes travel, have long received workers’ compensation benefits when injured on the road. (228) Employees who are injured while driving to pick up supplies for a job or while being driven to another work site also, generally, recover workers’ compensation. (229) Ultimately, courts have had little difficulty allowing benefits, provided that the employee is working, or otherwise benefiting the employer, when injured.

This longstanding ease in awarding benefits to employees who are away from work could have significant impact on the cyberspace workplace. While no legislation specifically addresses the issue, the assumption is that employees working remotely are entitled to workers’ compensation benefits so long as the injury arises out of and in the course of employment. (230)

E. Fair Labor Standards Act in the Cyberspace Workplace

The Fair Labor Standards Act of 1938 (FLSA) requires employers to pay employees at least the minimum wage (231) and to compensate certain employees who work more than forty hours per week. (232) Tracking employees’ hours has become fairly standard in traditional work environments. However, such record keeping becomes problematic in remote work arrangements. (233)

Some remote work arrangements fit into a category that is not subject to overtime pay. Employers are not required to pay overtime compensation to an “employee employed in a bona fide executive, administrative, or professional capacity” (234) or to certain skilled computer workers. (235) Therefore, remote workers would not normally be entitled to overtime compensation, because they are expected to exercise discretion and work without constant supervision. Other employees do not offer such administrative relief.

Employers may wish to negotiate with remote employees who are entitled to overtime. (236) The FLSA contemplates such an arrangement. (237) For example, telephone operators who operate switchboards out of their homes may engage in “private pursuits” such as eating or sleeping, and other non-work related activities. (238) In such an arrangement, it is difficult to determine the exact hours worked if “any reasonable agreement” is given consideration in light of all the relevant facts. (239) Such policies could allow employers to monitor when an employee is logged onto his computer, and may require employees who work at home to seek permission before working overtime.

F. The National Labor Relations Act in the Cyberspace Workplace

The National Labor Relations Act (NLRA) (240) governs the relationship between labor unions and employers in the private sector. (241) The National Labor Relations Board (the Board) has begun to analyze modern workplace conditions enabled by the Information Revolution. The Board has addressed union access to employees who work in a virtual office, employee e-mail usage, and the appropriate bargaining unit for employees who report via electronic communication.

Currently, the NLRA addresses workplaces with

a fixed location or, in the case of mobile employees such as truck
drivers, at least a fixed central location to which employees
physically report
employees and management is person-to-person, either face-to-face or
through written instrument or telephone
is largely through face-to-face transactions. (242)

However, when communication occurs through cyberspace instead of on the shop floor, there is no central gathering place, and no reasonable way for employees who seek organization to find their counterparts. The use of electronic communication as a means of organization, therefore, creates a gap in labor law. (243)

The NLRA sets out specific employee rights for dealing with access to employer-provided means of communication. (244) Employees have the right to self-organization and to form, join, or assist labor organizations. (245) Employees also have the fight to bargain collectively through their own representatives, and engage in other concerted activities. (246) A concerted activity includes both traditional union organizing efforts and any worker activity that is “in some way … in concert with the efforts of at least one other worker or … based on a fight provided by a collectively bargained agreement.” (247) Union organizing activity is a concerted activity. (248) “Solicitation” is communications, spoken between workers about organization. (249) Solicitation receives a higher level of protection because it involves direct worker communication. Therefore, “a rule against solicitation is invalid as to union solicitation on the employer’s premises during employee’s own time” and is a section 8(a)(3) violation.” (250)

On the other hand, “distribution” usually involves employee circulation of written union literature. (251) An employer may prohibit nonemployee distribution of union literature if the union can reach employees through other reasonable channels. (252) Nevertheless, when employees distribute union literature, employers cannot restrict the discussion of self-organization unless productivity or disciplinary problems result. (253)

Electronic communication, including e-mail and bulletin boards, could enable almost instantaneous dissemination of union literature. Therefore using electronic communications facilitates organization–a protected concerted activity. (254) The Board has analyzed the use of electronic communication, specifically e-mail, deciding that e-mail is distribution, and the more protected solicitation. (255) Employers can limit the distribution of union e-mail with the on-site distribution of union literature to protect employee productivity and discipline. Typically employers limit e-mail distribution by establishing a business-only e-mail policy. (256) The only restriction on employers is that their business-only e-mail policy cannot be discriminatory against the union. (257) Prohibiting e-mail use has been found to be discriminatory when a company had a broad policy against using computer resources for non-work purposes, but only enforced that policy selectively. (258)

The Information Revolution not only creates new issues of communication between employees, unions and employers
because participants in a [cyberspace workplace] are physically
separated from each other, they may-and must-meet many of their
needs independently of each other. Members of electronic
communities are far less likely to live in the same or contiguous
neighborhoods
same schools, and their families are less likely to shop in the
same stores. The weather is less likely to be an interesting topic
of conversation because members of electronic communities spread
across wide geographic areas are less likely to experience the same
weather phenomena. [Telecommuters] no longer park their cars in the
same parking lot. They do not get dressed in the same locker room.
There is little reason for them to take lunch or coffee breaks
together. (261)

These factors distinguishing offices with remote employees from traditional workplaces have significant implications for the Board and courts who must determine appropriate bargaining units. (262) For example, in Technology Services Solutions, (263) the employees and their managers worked from home offices. The employer maintained a regional office that serviced many states. The union pursued an election for a bargaining unit in one of the states serviced by the regional office. The Board held that the smallest appropriate bargaining unit included all employees covered by the regional office. (264) The Board found a location with centralized control, rather than a virtual location. (265) The Board did not take the opportunity to evaluate how bargaining unit determinations might differ in workplaces relying heavily on cyberspace communication. As more employees either work remotely or rely on technology to communicate, and fewer employers have centralized control, the Board will need to re-examine union organization during and after the Information Revolution.

G. The Occupational Safety & Health Act in the Cyberspace Workplace

The Occupational Safety & Health Act of 1970 (266) (OSHA) exists to ensure safe and healthful working conditions. (267) OSHA mandates that employers furnish each employee a worksite free from recognized hazards. (268) To enforce OSHA, Congress created the Occupational Safety & Health Administration (the Administration) which is housed in the Department of Labor (DOL). The Administration enforces OSHA via standards, compliance assistance, and, ultimately, inspections that result in fines and penalties for violations. (269)

In spite of the rise in remote work and virtual offices, no litigation per se has arisen as to how the Information Revolution has affected healthful and safe working conditions. (270) The Administration has nonetheless examined its authority over the increasing number of employees that the Information Revolution allows to work at home. (271) Initially the Administration asserted jurisdiction over home offices in an advisory letter to a Texas company about its telecommuting sales force. (272) The letter concluded that, under OSHA, employers were responsible for unsafe conditions in their employees’ home offices. (273) The DOL posted the letter on its web site, advising that “[a]ll employers, including those which have entered into ‘work-at-home’ agreements with employees, are responsible for complying with [OSHA] and with safety and health standards.” (274)

The Administration’s position was controversial, inspiring Labor Secretary Alexis Herman to retreat from the initial conclusion that OSHA reached into home offices. She reiterated, however, that the issue of OSHA regulation in the cyberspace workplace remains unsettled. (275)

Since Secretary Herman initially addressed home offices, the Administration has kept issues relating to the Information Revolution in mind by continuing to consider home-based worksite jurisdiction. Assistant Labor Secretary Charles N.Jeffress testified to Congress that “there is no provision in OSHA that excludes workplaces that are located in a home.” (276) Although the Administration never defines the “workplace,” it sets broad and encompassing goals of ensuring “safe and healthful working conditions,” (277) without excluding any location where work may Occur. (278) To clarify how home offices fit within the definition of “workplace,” the Administration issued the Home-Based Worksites Compliance Directive in February of 2000. (279) The Directive states that the Administration “strongly supports telecommuting and telework,” and will not typically conduct inspections of employees’ home offices. The Directive defines home offices as “office work activities” performed in a “home-based worksite,” such as “filing, keyboarding and writing,” as well as the use of office equipment such as telephones and desks. (280) A “home based worksite” is defined as “the areas of an employee’s personal residence where the employee performs work of the employer.” (281)

The Administration does not currently inspect home-based worksites but has refused to unilaterally eliminate the possibility of future home office inspections. The Administration may conduct inspections of home offices when it receives a complaint. (282) The Administration’s website, however, states that it has conducted investigations of home worksites only twice. (283) The two acknowledged home investigations involved lead contamination. (284)

Congress is also becoming involved in the question of OSHA regulation of home offices. Legislation is pending to prevent inspections of home worksites. (285) The proposed legislation would prevent the Administration from holding employers responsible for traditional home offices, which would have included the worksites involved in the previous lead poisoning investigations. (286) Representative Tom Davis proposed an alternative in H.R. 3518, which exempts work that is “performed in a workplace through the use of a telephone, computer, or other electronic device which is located in the residence of the employee engaged in such employment” from OSHA regulation. (287) If Representative Davis’ bill passes, the traditional home office could not be inspected, effectively ending any employer obligations to remote employees under OSHA. Until we have legislation that has passed, however, OSHA’s application to home offices remains unclear.

VI. ANALYSIS AND CONCLUSIONS

The Internet has brought us new options for communicating and working in cyberspace. The workplace, in and after the Information Revolution, however, suffers from the above-described limitations in terms of how employment law will operate. The question arises whether, and in what way, the law should evolve to respond to working conditions in the Information Age. Is there a better way to protect employee rights, ensure fairness, and guarantee benefits equal to those received before the increased reliance on the Internet? Can employers have certain and clear obligations to employees in the current legislative environment? We delineate three areas of legal response that may lessen the uncertainty that exists when pre-existing legislation addresses new cyberspace working conditions.

First, we address the difficulty facing courts that must apply old precedent to new workplace scenarios. We have described the difficulty in ascertaining whether remote employees are independent contractors or employees, and where jurisdiction exists for disputes involving a remote employment relationship. The question of how to define employees is largely a question of agency common law. Courts must use the existing and long-standing fight-of-control test, but apply it with sensitivity to the unique characteristics of Internet-enabled workplaces. To simply look for control, when the employer and employee are linked more by technology than physical commonality, will defy logic. Courts, rather, should strike a balance between employers and employees who may have different rights and obligations but seek to mutually benefit from the improved flexibility and productivity found in the cyberspace workplace.

Similarly, determining jurisdiction for workplaces taking advantage of technology presents courts with the difficult task of applying old rules to a new game. While the jurisdictional dilemma is not unique to the cyberspace workplace, it does present unique challenges. Before the Information Age, no one questioned where an employee could sue their employer. Now, remote employment and virtual work beg this precise question. As courts evolve toward the Zippo sliding scale, they must set some standard of how much contact remote employment creates between the employee’s forum state and the employer. To simply look for interactivity as courts do in determining jurisdiction in the consumer setting is a limited test in the employment setting because an employee always has interaction with his employer.

Similarly, as jurisdiction challenges courts, so do old rules of workplace tort and contracts. While thus far the Information Revolution provides no indication of entirely new tort and contract issues, the elements for both expand when one considers how technology facilitates claims. Courts can respond by slowly establishing precedent, but perhaps the technology itself offers its own solutions by evolving to limit its ease in causing tort damages or breaches of contract.

Second, we analyze how courts struggling with applying old tests and new frameworks should look for regulatory guidance. Insights from the IRS on the specific obligations owed to employees would clarify tax and benefit confusion. DOL guidance on worksite boundaries for virtual offices, leave time tracking, and reporting requirements would open up FMLA protection more easily to remote employees. The DOL could offer further guidance on wage and hour obligations to remote employees. Clear guidelines should emerge with respect to employers’ safety obligations for employees’ home offices. State workers’ compensation boards can assist by regulating the medical and disabilities benefits owed to employees injured while doing remote work. OSHA should either officially drop the issue of home office jurisdiction or obtain clear legislative authority to pursue the issue further.

Third, when regulatory guidance is insufficient, the legislature must act. Employers and employees who operate in the Information Age deserve clear public policy and governmental accountability so that the risks they undertake in the new economy are not exacerbated by a lack of legislative action. Specifically, protecting modern employees from cyberspace sexual harassment should be a priority for both the EEOC and Congress. Disabled employees also face uncertainty in both determining whether they are disabled and whether they deserve the option of remote employment as an accommodation. Remote employees injured away from the traditional worksite, or those who seek overtime, face similar uncertainty.

Labor law has been a relatively stable source of regulation since 1947–a record compared to most employment law. Yet it is the process of organizing and communicating with unions that is one of the key areas affected by the Information Revolution. Congress must clarify how unions can organize and communicate in cyberspace in order to protect labor and management rights.

Any evolution in employment law, whether that modification comes through the common law, regulation or legislation, should be thoroughly investigated. The new cyberspace workplace, while revolutionary, will likely suffer negative effects from knee-jerk reactions. Governmental and societal response as a whole should instead work toward bringing working conditions in the new economy to preexisting levels of certainty and fairness.

(1) John A. Byrne, Management by Web, BUS. WK., Aug. 28, 2000, at 84-96.

(2) For purposes of this paper, the Information Revolution to which the authors refer is the establishment and rapid growth of the Internet, cyberspace and related technologies. See generally Peter F. Drucker, Beyond the Information Revolution, ATLANTIC MONTHLY ON-LINE, at http:// www. theatlantic. com/ issues/ 99oct/ 9910drucker.htm (last visited Nov. 2, 2002).

(3) The Industrial Revolution is defined as “the development which took place in England in the late eighteenth and early nineteenth centuries, chiefly owing to the introduction of new or improved machinery and large-scale production.” FRANK I. SCHECTER, THE HISTORICAL FOUNDATIONS OF THE LAW RELATING TO TRADE MARKS 19 (1925).

(4) Rosabeth Moss Kanter, Are You Ready to Lead the E-Culture Revolution?, INC., Feb. 2000, at 43, 43.

(5) Mark Borden, A Brief History of the Net, FORTUNE, Oct. 9, 2000, at 34-35.

(6) Id.

(7) See Nancy A. Ruhling, Home Is Where the Office Is, AM. DEMOGRAPHICS, June 2000, at 54-60.

(8) Id.

(9) See Cahners InStat Group Report: Entering the Access Era: U.S. Telecommuter Demographics & the Impact of Fragmentation on IT Platforms, at www.instat.com (last visited Nov. 2, 2002).

(10) See Virtual Work Trends, at http:// www. effectivemeetings. com/ technology/ virtualteam/ mci10.asp (last visited Nov. 2, 2002.).

(11) Julekha Dash, On the Road Again: Lessons From a Mobile Contractor, COMPUTERWORLD, Nov. 29, 1999, at 37

(12) 42 U.S.C. [section] 2000e-2(a) (1994).

(13) 42 U.S.C. [subsection] 12101-12213 (2001).

(14) 29 U.S.C. [subsection] 2601-2654 (2001).

(15) 29 U.S.C. [section] 206(a)(1999).

(16) 29 U.S.C. [subsection] 151-169 (2001).

(17) 29 U.S.C. [subsection] 651-678 (2001).

(18) See Realizing the Benefits, at http:// www. benton. org/ library/ kickstart/ kick.realizing.html (last visited Nov. 2, 2002).

(19) Meg Fletcher, Shifts in Workplace May Boost Liability, BUS. INS., Oct. 30, 2000, at 3, 10.

A traditional employment arrangement, in which a full-time worker is
responsible to a single employer for the duration of his or her
career, is increasingly being replaced by contingent employment
arrangements. These include the use of independent contractors,
leased employees and temporary employees. Problems, especially for
third-party companies, can stem from many sources, including
litigation over the status of independent contractors and the need
to comply with several state and federal statutes regulating wage
and hour rules, workers comp and employers’ practices.

Id. at 10. See generally Jonathan D. Glater, For Last Paycheck, More Workers Cede Their Rights to Sue, N.Y. TIMES ON THE WEB, Feb. 24, 2001, at http://www.nytimes.com/2001/02/24/ business/24fire.html (last visited Nov. 2, 2002) (noting that companies such as Amazon.com and Lucent Technologies require employees to waive the right to sue when they are hired in order to receive severance pay for future layoffs).

(20) Adin Goldberg, Employment: Misclassifying Workers Can Be Dangerous to Your Corporate Health, 14 CORP. COUNS., Jan. 2000, at 2 (arguing that misclassification has tremendous ramifications for corporations). Some of the controversy arises from the industry custom of hiring employees as independent contractors, which enables employers to reduce costs and allows employees to work for several companies at the same time. Id. Allowing those employees to consider themselves actual employees of a company and, thus, entitled to benefits, allows the court to “impose … its ‘pre-digital’ mentality on a fast-changing Information Age where employees may have hundreds of jobs in their lifetimes.” Id. See also Sup. Ct. Denies Microsoft, Cert Petition in ‘Temp’ Employee Case, 17 COMPUTER & ONLINE INDUS. LITIG. REP., Jan. 18, 2000, at 6 [hereinafter Denies Cert]. By allowing these employees to assert rights as if they were regular employees, the court effectively allows them to have their cake and eat it too

(21) See Nationwide Mut. Ins. Co. v. Darden, 757 F.2d 1376 (3d Cir. 1985) (holding that the right of control test could be used to determine if a worker was an employee under ERISA requirements). The inquiry continues following the Information Revolution. For example, the Department of Labor has attempted to determine whether teleworkers are independent contractors or employees. See McLaughlin v. DialAmerica Mktg., Inc., 716 F. Supp. 812 (D.N.J. 1989) (holding that work performed by home researchers who worked under employer guidelines made the home researchers employees despite the flexibility of their alternative work arrangement).

(22) An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other, nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent. RESTATEMENT (SECOND) AGENCY [section] 2(3) (1957). “The test for determining whether an individual is an employee or an independent contractor requires consideration of a number of factors, none of which is decisive on its own. Those factors include the hiring party’s right to control the manner and means by which the job is performed, the skill required, the source of the tools used in the job, the location of the work, the duration of the relationship, the hiring party’s right to assign additional projects, the extent of the hired party’s discretion over when and how long to work, the method of payment, the hired party’s role in hiring and paying assistants, whether the work is part of the hiring party’s regular business, whether the hiring party provides the hired party with employee benefits, and the hired party’s tax treatment.” Katherine A. Hess & Doris R. Mackenzie Ehrens, ERISA Coverage-Employee vs. Independent Contractor, BENEFITS Q., 2d Q, 1999, at 59-60.

(23) Robert Ingle, Practicing Law in the Age of Technology

(24) See Barron, supra note 23, at 462.

(25) Louis Lyons, Comment, Congressional Campaign Workers: Independent Contractors or Employees? Politics, Taxes, and the Limits of the Internal Revenue Service’s Authority Over Employment Classification, 8 ADMIN. L.J. AM. U. 371 (1994).

(26) See Steven J. Arsenault et al., An Employee By Any Other Name Does Not Smell As Sweet: A Continuing Drama, 16 LAB. LAW. 285 (Fall 2000)

(27) Subtitle C of the Internal Revenue Code (IRC) sets out the definitions and rules relating to various employment taxes assessed on wages. For purposes of the Federal Insurance Contributions Act (FICA), the Federal Unemployment Tax Act (FUTA), and the collection of income tax at source on wages, the IRC follows the common law definitions (as defined in the next paragraph) that are based on the degree of control the service recipient can or could exercise. John O. Everett et al., Employee or Independent Contractor: A Determination With Far-Reading Consequences, ACCT. HORIZONS, Mar. 1995, at 1. The IRS launched the Employment Tax Examination Program, or ETEP, in 1988 to identify misclassified workers. Jennifer Haupt, Heading Off an IRS Audit, NATION’S BUS., Mar. 1996, at 42. To help address difficult worker classification issues not spelled out in the Code, the Supreme Court constructed a twenty-point common law test (contained in United States v. Silk, 331 U.S. 704 (1947)) later recognized formally by the IRS in Revenue Ruling 87-41. Essentially, to distinguish between employees and independent contractors, the test measures an employer’s degree of control over the worker’s performance. The greater the control an employer has over a worker’s hours, training, supervision, use of tools and materials, accomplishment of daily tasks, and pay, the stronger the likelihood that the IRS and courts will consider the worker an employee, regardless of whether or not the employer actually exercised those powers. If, on the other hand, the employer has little or no control over the worker, then the IRS or the courts likely will categorize the worker as an independent contractor. See Lyons, supra note 25.

(28) See Denies Cert, supra note 20.

(29) L. Martin Miller, Worker Classification Hits Home For Accounting Firms, PRAC. TAX STRATEGIES, Aug. 2000, at 68-79.

(30) Robert Grove, Labored Laws, FORBES, Feb. 19, 2001, at 83.

(31) Ilan Mochari, Misclassifying Workers Can Cost You, Big Time, INC., Nov. 2000, at 97-98. One California hi-tech company, for example, relied on freelance consultants to perform specialized work. The independent contractors worked forty hours a week, worked exclusively for the company, and were paid by the hour. “To the state of California, those conditions meant that they were [the company’s] employees.” The company settled with the state for “somewhere ‘under $25,000.'” Id.

(32) Dennis T. Rice, Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet, 55 BUS. LAW. 1801 (2000). This article evaluates how the new economy of global transactions mandates predictability in multiple areas including jurisdiction with respect to the areas of substantive law most commonly implicated by electronic commerce. These areas include “advertising/consumer protection, intellectual property, payment systems/banking, data protection, public law/gaming, sale of goods, sale of services, securities and taxation.” Id. at 1804.

(33) For example, in the startup boom, companies that had little in the way of track record to present to prospective employees often attracted job candidates with stock options. The promise of building wealth as the company grew worked, and many workers left the comforts of corporate life for the thrill of building a dot-corn success. Unfortunately, the thrill is gone for many, and the stock options for companies that fell victim to a cooling economy are now worthless. Employees are responding in many cases with lawsuits.

As the economy slows and the promise of the next big bankable thing
evaporates, New Economy workers who feel they have been burned are
filing suits over everything from outright labor-law violations to
claims of fraudulent inducement and breach of contract when stock
options are rendered worthless. One high-level Silicon Valley
executive is even charging conspiracy, claiming she was
strategically fired so her stock options couldn’t vest. This wave
of disappointment litigation is roiling companies everywhere and
has pushed employment law-firm caseloads up by as much as 100%
since the economy cooled.

Michelle Conlin, Labor Laws Apply to Dot-Coms? Really?, BUS. WK., Feb. 26, 2001, at 96-98.

(31) Worker layoffs are another product of the economic cooling off that has left dot-coms and other tech startups facing increased litigation. “In January 2001, American companies laid off an estimated 142,208 employees, which was a 180 percent increase from January 2000, when 50,655 employees lost their jobs. Some of the companies doing massive layoffs include big-name firms such as DaimlerChrysler, Amazon.com, Lucent Technologies, General Electric, and AOL Time Warner. But it’s not just big corporations that are feeling the pinch–smaller dot.com companies are suffering significant losses in the market, resulting in substantial layoffs in the workplace.” Karen A. Doner, Layoffs: Stock Options Today, Jobless Tomorrow, 13 No. 4 VA. EMP. L. LETTER 3 (May 2001). “In December 2000, Internet companies accounted for 10,459 layoffs, which was a 19% increase over November 2000, when 8,789 employees were laid off. This increase seems small, however, when compared to the 55%jump in layoffs between October and November. Between January and June 2000, Internet companies cut 5,097 jobs, compared to 36,177 job cuts between July and December 2000–a 600% jump in the second half of the first year of the new millennium! With waves of layoffs hitting, not only is unemployment on the rise, but the number of lawsuits stemming from terminations is also on the way up.” Id.

(35) Infra Section III.

(36) Employees may also bring a claim for wrongful discharge in violation of public policy. However, not all jurisdictions allow the tort. See, e.g., Borden v. Johnson, 395 S.E.2d 628 (Ga. Ct. App. 1990) (holding that Georgia will not recognize the public policy tort absent legislative directive). Those states that do recognize the claim rely on varying standards of public policy. Some courts permit public policy claims for violations of ethical duties

(37) Panavision Int’l v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) (holding that under “the effects doctrine,” the defendant was subject to personal jurisdiction for stealing trademarks).

(38) State v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. 1997) (holding that if Internet advertising demonstrates a clear intent to solicit business from residents in combination with resident contact, personal jurisdiction over the advertiser is present so long as no undue inconvenience results).

(39) Info. Techs. Int’l, Inc. v. ITI of N. Florida, Inc., 2001 U.S. Dist. LEXIS 19475 (Ill. Nov. 26, 2001) (holding that defendant’s unauthorized access/”hacking,” inter alia, was sufficient basis for personal jurisdiction).

(40) Employees may also bring a claim for wrongful discharge in violation of public policy. However, not all jurisdictions allow the tort. See, e.g., Borden v. Johnson, 395 S.E.2d 628 (Ga. Ct. App. 1990) (holding that Georgia will not recognize the public policy tort absent legislative directive). Those states that do recognize the claim rely on varying standards of public policy. Some courts permit public policy claims for violations of ethical duties

When analyzing a wrongful discharge claim, the first issue is the source of the public policy. There are four basic per se categories in which the court will protect an employee: whistleblowing, the exercise of a public right (such as filing a worker’s compensation claim), the exercise of a public duty (such as jury duty), and the employee’s refusal to violate the law. Courts will also consider whether the public policy will be jeopardized if the court allows the employer to fire the employee under these circumstances. Finally, the court will consider whether the discharge would affect the public at large or whether only the employer and the employee are involved. See Makovi v. Sherwin Williams Co., 561 A.2d 179 (Md. 1989).

In the cyber-workplace arena, wrongful discharge claims have met with similar difficulty. In Smyth v. The Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996), the court rejected the plaintiffs claims that his termination was both wrongful discharge in violation of public policy and an invasion of privacy. In that case, the employer assured employees that e-mail communication would be confidential and would not be monitored or intercepted, nor would the employer use e-mails against employees for discipline or termination. However, the plaintiff sent threatening e-mails and was subsequently fired. Despite the employer’s promise of confidentiality, the court held that there was no reasonable expectation of privacy in the e-mail communication, and the plaintiff had voluntarily sent the messages. In addition, the employer’s interest in preventing inappropriate e-mail outweighed any privacy interest. Id.

(41) Blakey v. Cont’l Airlines, Inc. 164 N.J. 38 (2000) (holding that jurisdiction existed for a libel claim against a non-resident based upon postings on a company electronic bulletin board).

(42) See Pennoyer v. Neff, 95 U.S. 714 (1877)

(43) See Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)

(44) The court’s ability to exert power over the parties is directly related to the due process requirements of the Constitution. See U.S. CONST. amend. XIV. Generally speaking, the Court considers the exercise of its power to be consistent with the “traditional notions of fair play and substantial justice” when the defendant has established minimum contacts with the state. Int’l Shoe Co., 326 U.S. at 319-20.

(45) See Hanson v. Denckla, 357 U.S. 235 (1958).

(46) See Asahi Metal Indus. v. Superior Court of Cal., 480 U.S. 102 (1986).

(47) Todd D. Leitstein, A Solution for Personal Jurisdiction on the Internet, 59 LA. L. REV. 565 (1999) (arguing that Internet jurisdiction should be divided into tort, commercial activity, and non-commercial activity).

(48) See Oberding & Norderhaug, supra note 43.

(49) See Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996)

(50) 937 F. Supp. 161 (D. Conn. 1996).

(51) See id.

(52) See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).

(53) Id.

(54) Id. (citing CompuServe, Inc. v. Patterson, 89 F. 3d 1257 (6th Cir. 1996)).

(55) See Bensusan Rest. Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). Most difficult cases fall in the middle of the scale. For example, in Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996), the court defined this middle ground as “occupied by interactive [websites] where a user can exchange information with a host computer.” See id. In Maritz, the court found that although the commercial purpose of the website was not yet up and running, the fact that users could sign up for a mailing list on the site, and receive updates and further information via e-mail, constituted “doing business” and was therefore sufficient for jurisdiction. See id.

(56) See Gregory V. Mersol, Employer/Employee Rights on the Information Highway–Is There a Right of Privacy?, 4 CYBERSPACE L. 10 (1999).

(57) Smyth v. Pillsbury Co., 914 F. Supp. 97, 100 (E.D. Pa. 1996) (citing RESTATEMENT (SECOND) OF TORTS [section] 652B).

(58) See Tapia v. Sikorsky Aircraft Div. of United Techs., 1997 WL 381213, at *1 (Conn. Super. Ct. June 30, 1997) (locker search)

(59) Acuff v. IPB, Inc., 77 F. Supp. 2d 914 (C.D. Ill. 1999) (summary judgment was not proper in an action alleging intrusion into seclusion where an employer used video surveillance of plaintiff’s office during a medical examination)

(60) See Smyth, 914 F. Supp. at 97.

(61) See id.

(62) Frank C. Morris, Jr., Workplace Privacy Issues: Avoiding Liability, 6th Annual ALI-ABA 697, June 3-5, 1999 [hereinafter Workplace Privacy Issues].

(63) See id. Also used in trade secret productivity assessment, etc.

(64) See Frank C. Morris, E-Mail Communication: The Next Employment Nightmare, ALI/ABA Course of Study: Employment Discrimination and Civil Rights Acting in Federal and State Courts 623, 634-35 (1995).

(65) Id. See also Thomas York, Invasion of Privacy? E-mail Monitoring is on the Rise, at http:// www. informationweek. com/ 774/email.htm (Feb. 21, 2000) (last visited Nov. 2, 2002).

(66) See Peter Blackman & Barbara Franklin, Blocking Big Brother: Proposed Law Limits Employers’ Right to Snoop, N.Y.L.J., Aug. 19, 1993, at 5 (citing University of Wisconsin study that found monitored telecommunications workers suffered more depression, anxiety, and fatigue than their non-monitored counterparts at the same plant)

(67) Publicity requires dissemination to a large group of people or at least enough people to ensure that the information becomes public knowledge. In addition, publicity can be to a smaller group if that smaller group stands in a special relationship to the plaintiff. Coworkers may qualify as that special relationship. However, in at least one case, the court held that a small group of co-workers was not sufficient to constitute publicity. See Mersol, supra note 56. The author cites Eddy v. Brown, 715 P.2d 274 (Okla. 1986), in which the state supreme court rejected a claim after the employer told a small group of the plaintiffs coworkers that the plaintiff was undergoing psychiatric care. See also RESTATEMENT (SECOND) OF TORTs [section] 652 (1979).

(68) Cronan v. New England Tel. Co., 1 Indiv. Empl. Rts. Cas. (BNA) 651 (Mass. Super. Ct. Aug. 15, 1986) (employer disclosed to other employees that the plaintiff suffered from AIDS).

(69) Borquez v. Robert C. Ozer, P.C., 923 P.2d 166 (Colo. Ct. App. 1995) (employer disclosed to other employees that plaintiff was homosexual).

(70) Personal information regarding Internet users is already being gathered and stored by companies such as DoubleClick, which make the information available to companies for purchase. See In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001).

(71) Morris, supra note 64, at 702.

(72) U.S. Dist. LEXIS 1090, at *1 (N.D. Ill. Feb 02, 2001).

(73) Id. The court held that plaintiff Youngman had sufficiently stated a claim for false light and refused to dismiss the claim.

(74) Frank C. Morris, Jr., The Electronic Platform and Employer Privacy and Other Risk Management Concerns in the New Millennium, SG016 ALI-ABA 1197, July 26-28, 2001 [hereinafter Electronic Platform].

(75) U.S. v. Simons, 206 F.3d 392, 398 (4th Cir. 2000)

(76) 18 U.S.C. [subsection] 2510-2521 (2001).

(77) Id.

(78) See Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996) (finding in favor of employer who intercepted employee’s e-mail)

(79) See Daniels v. Worldcom Corp., 1998 U.S. Dist. LEXIS 2335 at *1 (N.D. Tex. 1998) (holding company not liable for racially offensive e-mail because of prompt response)

(80) See Regina Lynn Preciado, Mouses to the Grindstone, LYCOSNETWORK WIRED NEWS, Aug. 12, 1998, at http://www.wired.com/news/culture/0,1284,14371,00.html (last visited Nov. 2, 2002).

(81) See generally Telecommute America website and 1997 survey, at http://www.working fromanywhere.org (last visited Nov. 2, 2002).

(82) See Amy Rogers, You Got Mail But Your Employer Does Too: Electronic Communication and Privacy in the 21st Century Workplace, 5 J. TECH. L. & POL’Y 1 (2000)

(83) Gertz v. Robert Welch, Inc., 418 U.S. 323, 370 (1973) (White, J., dissenting) (asserting that defamation requires proof of “a false publication that would subject [the plaintiff] to hatred, contempt, or ridicule”).

(84) Id.

(85) See Blumenthal v. Drudge, 992 F. Supp. 44 (D.C. 1998) (addressing publication in the Drudge Report, an electronic publication, of alleged defamatory statements regarding the plaintiffs).

(86) 751 A.2d 538 (NJ. 2000).

(87) See Falls v. Sporting News, 834 F. 2d 611 (6th Cir. 1987). Falls involved a sports editor who claimed his former employer defamed him by stating that he was “on the downswing” and was thus replaced by a younger sports writer. The court held that the jury must decide whether the statement was opinion, as opposed to being based on facts, and, thus, defamatory. See id.

(88) 240 F. 3d 138 (2d Cir. 2000)

(89) Id. at 148

(90) Under the single publication rule, publication occurs for statute of limitations purposes at the time the defamatory statement is made available to the public, although many more copies may be distributed at a later date. See Firth v. New York, No. 97999, 2000 WL 306865, at *6 (N.Y. Ch. Mar. 8, 2000).

(91) See id.

(92) See id. In Firth, a report criticizing the plaintiff’s management style was published in hard copy and also posted on the Internet. Id. The court rejected plaintiff’s claim that each new “hit” on the Internet constituted a new publication, opting instead to treat Internet hits the same as sales of an article. Id.

(93) See Mersol, supra note 56.

(94) Id.

(95) 726 N.Y.S.2d 629 (N.Y.A.D. 1 Dept. 2001).

(96) Id. at 632

(97) See, e.g., Restuccia v. Burk Tech. Inc., No. 95-2125, 1996 Mass. Super. LEXIS 367, at *3 (Mass. Super. Aug. 13, 1996) (denying summary judgment on wrongful termination claim where genuine issues of material fact remained regarding the invasion of privacy claim as to whether there was a reasonable expectation of privacy).

(98) See, e.g., Borden v. Johnson, 395 S.E.2d 628 (Ga. Ct. App. 1990) (holding that Georgia will not recognize the public policy tort absent legislative directive).

(99) Stewart J. Schwab, Symposium: The Changing Workplace: Wrongful Discharge Law And The Search For Third-Party Effects, 74 TEN. L. REV. 1943, 1966 (June 1996).

(100) See Makovi v. Sherwin Williams Co., 561 A.2d 179 (Md. 1989).

(101) 914 F. Supp. 97 (E.D. Pa. 1996).

(102) Id. Cf. Restuccia, No. 95-2125, 1996 Mass. Super. LEXIS 367, at *3.

(103) 963 F.2d 611 (3d Cir. 1992).

(104) Id. at 622.

(105) See Bohach v. Reno, 932 F. Supp. 1232 (Nev. 1996) (addressing whether monitoring of a police officer’s pager is a sufficient invasion of privacy to constitute wrongful discharge)

(106) See, e.g., GA. CODE ANN. [section] 13-8-2.1 (1990). See generally Terry Morehead Dworkin & Elletta Sangrey Callahan, Buying Silence, 63 AM. BUS. L.J. 151 (1998).

(107) P. Jerome Richey, Covenants Not to Compete: A State-by-State Survey, 1991 A.B.A. SEC. LAB. & EMP. L., at 9.

(108) See Melli Walher, et al., New Developments in Restrictive Covenants, WIS. EMP. L. LETTER, May 2001.

(109) See Ari Gabinet, Covenants Not to Compete in Merger Context, LEGAL, INTELLIGENCER, Mar. 26, 2001, at A9 (noting that because non-competes are restraints on trade, they must serve a valid business purpose in addition to suppressing competition)

(110) Stephen L. Sheinfeld & Jennifer M. Chow, Protecting Employer Secrets and the ‘Doctrine of Inevitable Disclosure,’ 600 PRAC. L. INST./LITIG. 367, 392 (1999) (“State law determines the requirements for and validity of non-competition covenants.”). Sheinfeld & Chow’s article includes a thorough discussion of various state law responses to enforcement of non-compete covenants.

(111) See CAL. BUS. & PROF. CODE 16600 (West 1998) (“Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”).

(112) See Chiara F. Orsini, Comment, Protecting an Employer’s Human Capital: Covenants Not to Compete and the Changing Business Evironment, 62 U. PITT. L. REV. 175, 177 (2000). Most jurisdictions still apply some variant of the rule of reason when determining the reasonableness of non-compete covenants. See RESTATEMENT (SECOND) OF CONTRACTS [section] 188, cmt. a (1979). The latter is a three-part balancing test that evaluates: 1) whether the restriction is broader than necessary to protect a legitimate employer interest

In jurisdictions that enforce non-compete agreements, the courts’ focus of inquiry is typically the overall reasonableness of the restraint. However, there are aspects of the current interpretations of reasonableness, with regards to geography and time, that could dampen the growth of the technology sector in states that enforce non-compete agreements. Due to the rapid pace of change and product innovation, enforceable contracts which limit the employee’s ability to compete with an employer for up to two years may be overly restrictive. In a marketplace where innovations become stale in a matter of weeks or months, restraining an employee from using his or her skills and knowledge for a period of two years effectively deprives the employee of any opportunity to capitalize on their expertise…. Similar policy concerns exist when construing what is a reasonable geographical boundary, especially in an industry that is frequently global in nature. See Kristina L. Carey, Comment, Beyond the Route 128 Paradigm: Emerging Legal Alternatives to the Non-Compete Agreement and Their Potential Effect on Developing High-Technology Markets, 5 J. SMALL & EMERGING BUS. L. 135, 144 (2001) (addressing the dynamic nature of the computer technology industry, in terms of its “fluid industrial structure” and its lack of geographical borders, and how this impacts traditional employment law doctrines).

(113) RESTATEMENT (SECOND) OF CONTRACTS [section] 188, cmt. d (1979).

(114) See Am. Software U.S.A., Inc. v. Moore, 448 S.E.2d 206 (1994) (citing W.R. Grace & Co. v. Mouyal, 422 S.E.2d 529 (1992) for the proposition that a restriction on the area where the employee worked for employer is a legitimate protection)

(115) These states, currently numbering seventeen in total, include California, Colorado, Florida, Oregon, and Wisconsin. See COVENANTS NOT TO COMPETE, A STATE-BY-STATE SURVEY (Brian M. Malsberger et al. eds., 2d ed. 1996 and Supp. 1998) (providing an overview of each state’s laws regulating non-competition agreements). Statutes of this nature generally appear to limit rather than expand the enforcement of covenants not to compete. See, e.g., CAL. BUS. & PROF. CODE 16600-16602.5 (West 1997) (voiding, with several nonemployment related exceptions, contracts restraining anyone from engaging in a lawful profession, trade, or business of any kind)

(116) Mark Manta & Mark Featherman, Legal Tools in the Challenge of Retaining and Attracting Employees for Start Up Companies, METRO. CORP. COUNCIL, May 2001, at 8.

(117) See Orsini, supra note 112, at 179.

(118) See EarthWeb, Inc. v. Schlack, 71 F. Supp. 2d 299, 313 (S.D.N.Y. 1999).

(119) Id. at 310.

(120) See Heartland Sec. Corp. v. Gerstenblatt, 2000 U.S. Dist. LEXIS 3496 (S.D.N.Y. 2000).

(121) Nick Wingfield, eBay’s Hiring of Former Amazon Executive under Noncornpete Pact Sparks Court Battle, WALL ST. J. Oct. 3, 2001 at http://www.strategy-software.com/press/hr_wsj100301 .html (last visited Nov. 2, 2002).

(122) See Carla Feldman & Jill Westmoreland, Noncompetes Aren’t Guaranteed, THE NAT’L L.J., Sept. 24, 2001, at B18.

(123) The work for hire doctrine was intended for works that are the product of traditional employer-employee relationships, in which the employee gives up rights in his/her creation in exchange for a salary and other employment benefits. See 133 CONG. REC. 12,957 (1987) (statement of Sen. Cochran). See also 17 U.S.C. [subsection] 101 (1)-(2) (1994).

(124) See Copyright Act of 1976, 17 U.S.C. [section] 101, [section] 201(a) (1994).

(125) See 17 U.S.C. [section] 201 (b) (1994).

(126) 490 U.S. 730 (1989).

(127) See id. at 752 (providing factors for determining employment status, the Supreme Court proposed consideration of the right to control and assign, the source of skills and instrumentalities, the ability to determine the location and the duration of the project, and the right to set the terms for performance).

(128) Raymond A. Kurtz & Celine M. Jimenez, Copyrights On-Line, 39 How. L.J. 531, 536 (1996).

(129) See Elli Malki, Intellectual Property and the Valuation of Biotechnology at WOPEC, at http:// netec. mmc. ac. uk/ WOPEC/ data/ papers/ wpanuwpfi9709002.html (last visited Nov. 2, 2002). A work made for hire impacts initial copyright ownership, see 17 U.S.C. [section] 201 (1994), the copyright’s duration, see id. [section] 302 (c), the owner’s renewal rights, see id. [section] 304(a), termination rights, see id. [section] 203(a), and the right to import certain goods using the copyright. See id. [section] 601 (b).

(130) See Kurtz & Jimenez, supra note 128.

(131) 29 U.S.C. [section] 206(a)(1999).

(132) Joan T.A. Gabel & Nancy R. Mansfield, On the Increasing Presence of Remote Employees: An Analysis of the Internet’s Impact on Employment Law as it Relates to Teleworkers , 2J. L. TECH. & POL’Y 233, 244-53 (2001).

(133) Joan T. A. Gabel et al., Evolving Conflict Between Standards for Employment Discrimination Liability and the Delegation of that Liability: Does Employment Practices Liability Insurance Offer Appropriate Risk Transference?, 4 U. PA.J. LAB. & EMP. L. 27 (2001).

(134) Title VII provides:
It shall be an unlawful employment practice for an employer (1) to
fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment because
of such individual’s race, color, religion, sex or national origin.

42 U.S.C. [section] 2000e-2(a). In Griggs v. Duke Power Co., 401 U.S. 424 (1971), a landmark Title VII case, ChiefJustice Burger issued a unanimous opinion holding that Title VII forbids not only practices adopted with a discriminatory motive but, also, practices which, though adopted without discriminatory intent, have a discriminatory effect on minorities and women. See id. Griggs has been called “the single most important Title VII decision, both for the development of the law and in its impact on the daily lives of American workers.” H.REP. NO. 102-40(I)(1991), reprinted in 1991 U.S.C.C.A.N. 549.

(135) Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified at 42 U.S.C. 2000e (1991)).

(136) See id. Among the stated motivations driving the Act’s passage was “the need to overturn Price Waterhouse [v. Hopkins],” 490 U.S. 228 (1989), which Congress believed had “severely undercut” Title VII’s effectiveness. See H.R. REP. 102-40(I) (1991), reprinted in 1991 U.S.C.C.A.N. 549. In Price Waterhouse, the Supreme Court held that an employer who permitted discrimination to play a part in an employment decision could escape a Title VII violation altogether if it could prove that it would have made the same decision in the absence of discrimination. Price Waterhouse, 490 U.S. at 1795. This holding alarmed many who believed it undermined the statute’s intent to completely eliminate intentional discrimination. Id.

(137) H.R. REP. 102-40(I) (1991), reprinted in 1991 U.S.C.C.A.N. 549, [section] XI (Minority views of Reps. Bill Goodling, E. Thomas Coleman, Steve Gunderson, Harris W. Fawell, Cass Ballenger, Susan Molinari, Bill Barrett, John A. Boehner).

(138) See generally http://www.eeoc.gov (last visited Nov. 2, 2002).

(139) In recognizing sexual harassment as Title VII discrimination, the Court relied, among other principles, on the power theory represented in the writing of Catherine MacKinnon and others. See, e.g., CATHERINE MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN (1979). Such theories asserted that women are treated differently as a group because they lack equal power to men, and that sexual harassment perpetuates the power imbalance. MacKinnon therefore defined sexual harassment as “the unwanted disposition of sexual requirements in the context of a relationship of unequal power.” Id. at 1. See also Joanna P. L. Mangum, Note, Wrightson v. Pizza Hut of Am., Inc.: The Fourth Circuit’s ‘Simple Logic’ of Same-Sex Sexual Harassment Under Title VII, 76 N.C.L. REV. 306, 320 (1997).

(140) See Ellen Frankel Paul, Sexual Harassment as Sex Discrimination: A Defective Paradgm, 8 YALE L. & POL’Y REV. 333, 336 (1990).

(141) 477 U.S. 57 (1986).

(142) Id. at 67. Hostile work environment harassment occurs when harassing conduct “unreasonably interfere[s] with an individual’s work performance or create[s] an intimidating, hostile or offensive working environment.” Paul, supra note 140, at 334 (quoting Equal Employment Opportunity Commission Guidelines on Discrimination Because of Sex, 29 C.F.R. [section] 1604.11(a) (1990)). The Meritor Court held that to establish a hostile working environment claim, harassment must be severe and pervasive. Meritor, 477 U.S. at 67.

(143) Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 746 (1998)

(144) Faragher, 542 U.S. at 780.

(145) 510 U.S. 17 (1993).

(146) Id. at 787.

(147) Id. at 787-88.

(148) Id.

(149) Id. at 789.

(150) The question certified in Burlington was whether an employee who refuses a supervisor’s unwelcome anti threatening sexual advances, yet suffers no adverse, tangible .job consequences, can recover against the employer without showing the employer’s negligence–that is, without showing that the employer “knew or should have known” of the harassment. Burlington, 524 U.S. at 746-47. In Faragher, the Court addressed the contours of the “scope of employment” and “aided-by-the-agency” agency principles in the hostile work environment context. Faragher, 524 U.S. at 807.

(151) Burlington, 524 U.S. at 754-55. The Supreme Court stated that, although hitherto “cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment,” id. at 751, the terms quid pro quo and hostile work environment do not appear in Title VII. The Court noted that when used in Meritor, the terms served a specific and limited purpose–“to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive.” Id. at 752.

(152) See id. at 754-55

(153) Burlington, 524 U.S. at 765

(154) Burlington, 524 U.S. at 765.

(155) See id.

(156) Several circuit courts of appeal have considered employer liability for discrimination since 1998. Every circuit court that has addressed employer liability has acknowledged the Burlington/Faragher standard. Any circuit precedent holding that strict liability or negligence standards apply has been overruled. See, e.g., Rubidoux v. Colorado Mental Health Inst., 173 F.3d 2291, 1296 (10th Cir. 1999)(reversing summary judgment for plaintiff because strict liability no longer applied, even in quid pro quo cases, and remanding for consideration of employer’s affirmative defenses)

(157) Gabel et al., supra note 133.

(158) Burlington, 524 U.S. at 747-48.

(159) Id. at 779.

(160) See Llampallas v. Mini Circuits Lab, 163 F.3d 1236 (11th Cir. 1998). The Eleventh Circuit nevertheless found no Title VII violation. The court reasoned that the plaintiff had not established “a causal link between” her harasser’s discriminatory animus and the employment action, concluding that this was not a “cat’s-paw case.” Id. at 1245-46.

(161) See generally Montero v. Agco Corp., No. CV-96-01920-FCD, 1999 WL 759966, at *1 (9th Cir. Sept. 28, 1999). On appeal, the plaintiff claimed that, because she had been constructively discharged, she suffered a tangible employment action and, therefore, the affirmative defense was unavailable. See id. at *4. The Ninth Circuit did not decide whether constructive discharge constituted a tangible employment action, however, because it found that since she resigned after the harassment had ended and the employer had disciplined the harassers, she was not constnlctively discharged. See id. See also Phillips v. Taco Bell Corp., 156 F.3d 884 (8th Cir. 1998) (failing to reach the merits on plaintiffs claim that constructive discharge constitutes a tangible employment action because it found that the plaintiff was not constructively discharged). But see Caridad v. Metro-North Commuter R.R., 191 F. 3d 283 (2d Cir. 1999) (holding that constructive discharge does not constitute a tangible employment action under the Trilogy because “co-workers, as well as supervisors, can cause … constructive discharge” and because in Burlington, where the plaintiff claimed constructive discharge, the Supreme Court noted that “‘Ellerth has not alleged she suffered a tangible employment action.'” Id. at *11 (quoting Burlington, 524 U.S. at 766).

(162) No. CIVA95CV716 (RSP/GJD), 1998 WL 166845, at *1 (N.D.N.Y. Apr. 7, 1998).

(163) Id. at 40-43.

(164) Id. at 48. The court also based its grant of summary judgment on an enforced e-mail policy. Id.

(165) Id.

(166) No. C7-94-510, 1994 WL 455699, at *1 (Minn. Ct. App. Aug. 23, 1994).

(167) 814 F. Supp. 1186 (S.D.N.Y. 1993).

(168) Strauss, 814 F. Supp. at 1191

(169) Blakey v. Continental Airlines, Inc., 751 A.2d 530 (N.J. 2000).

(170) Id.

(171) Id. at 46. The court remanded to determine if the employer had sufficient notice to create liability. Id.

(172) Ann Carns, Those Bawdy E-mails Were Good for a Laugh–Until the Ax Fell WALL ST.J., Feb. 4, 2000, at A8.

(173) Id.

(174) Id.

(175) The affirmative defense has its limits. Generally, however, courts have declined to extend the affirmative defense to other circumstances or claims. See, e.g., Lintz v. Am. Gen. Fin., Inc., 50 F. Supp. 2d 1074 (D. Kan. 1999). In Lintz, the court declined to extend the Trilogy’s affirmative defense to a claim attempting to hold an employer liable under a negligence theory. Id. at 1081. There, the plaintiff alleged hostile environment harassment based on inappropriate remarks and touching by her supervisor. Id. at 1077. Although the plaintiff did not report her supervisor’s conduct at any time prior to her exit questionnaire, and the employer promptly investigated the allegations and terminated the supervisor, id. at 1077-78, which might satisfy both prongs of the affirmative defense for plaintiff’s misuse-ofauthority count, the court held that the defense was not available in the plaintiff’s separate negligence count based on a previous employee’s complaints. Id. at 1081-84. The court thus denied the employer’s motion for summary judgment. Id.

(176) Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998).

(177) See Gabel et al., supra note 133.

(178) Burlington, 524 U.S. at 765

(179) Parkins v. Civil Constr. of Illinois, Inc., 163 F.3d 1027, 1037 (7th Cir. 1998).

(180) See Montero v. AGCO Corp., 192 F.3d 856, 863 (9th Cir. 1999).

(181) See id. at 863-64.

(182) Id. at 864 n.6.

(183) See Burlington, 524 U.S. at 765

(184) See 42 U.S.C. [section] 12101(b)(4)(Supp. IV 1992). The Act adopts numerous provisions of the Rehabilitation Act of 1973, 29 U.S.C. [subsection] 701-797 (Supp. IV 1992), but is farther-reaching in terms of the employers and employees it protects. The Rehabilitation Act applies to federal government agencies and federal contractors, while the ADA protects both public and private employers. Although the vast majority of ADA cases filed against employers are for alleged discrimination, employers should also be aware of their obligations to provide access to public accommodation in Title III. Under the ADA, employers may be required to make their Internet sites accessible to disabled individuals. New regulations under section 508 require the federal government to make its websites accessible to the disabled. Jeffrey Benner, Disabled Access Now, More or Less, at http://www.wired.com/news/ print/0,1294,44724,00.html (June 25, 2001) (last visited Aug. 22, 2001)

(185) Title I applies to employment

(186) 29 C.F.R. [section] 1630.2(m) (2000). The EEOC Interpretive Guidance provides a two-pronged analysis in order to determine whether or not an employee or applicant is qualified: 1) the individual must satisfy the position with respect to education, experience, and skill level

(187) See 42 U.S.C. [section] 12112(a)(Supp. IV 1992).

(188) See Matthew B. Schiff & David L. Miller, The Americans With Disabilities Act: A New Challenge For Employers, 27 TORT & INS. L.J. 44, 51 (1991). Essential functions are those duties which are fundamental to a particular job. Marginal tasks and those that are merely incidental to job performance are not essential functions. See 29 C.F.R. [section] 1630.2(n) (1996). The ADA gives consideration to the employer’s judgment as to what functions are essential. See 42 U.S.C. [section] 12111(8) (Supp. IV 1992)

(189) See 29 C.F.R. [section] 1630.2(m) (1996).

(190) The Rehabilitation Act definition of “handicapped,” found at 29 [U.S.C. [section] 706(7)(B) (1985), is identical to the ADA definition of”disability,” found at 42 U. S.C. [section] 12102 (1992). See Joan Gabel et al., The New Relationship Between Injured Worker and Employer: An Opportunity for Restructuring the System, 35 AM. BUS. L.J. 403 (1998).

(191) See Impact on Comp. to be Substantial, Attorney Tells ABA Conference, WORKERS’ COMP. L. REP. (BNA) No. 2, at 131 (Apr. 30, 1991).

(192) 29 C.F.R. [section] 1630.2(h)(1), (2) (1996). A physical impairment is “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” Id. A mental impairment is “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” Id. [section] 1630.2(h).

(193) Id. [section] 1630.2(g)(1).

(194) Id. [section] 1630.2(g)(2).

(195) Id. [section] 1630.2(g)(3).

(196) See 29 C.F.R. [section] 1630.2(j)(2001). Major life activities include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Id. [section] 1630.2(j). The EEOC extended major life activities to include sitting, standing, and lifting. Any work-related injury that resulted in such impairment would qualify an injured employer to ADA protection. Id.

ADA regulations state that an individual has a substantially limiting impairment when that person is: (1) unable to perform a major life activity that the average person in the general population can perform

The EEOC’s interpretive guidance to the ADA indicates that the factors to determine whether an individual is substantially limited are (1) the nature and severity of the impairment

(197) Id. [section] 1630.2 (j)(3)(i).

(198) See 29 C.F.R. [section] 1630.2(k) (1996).

(199) See Sch. Bd. v. Arline, 480 U.S. 273 (1987) (analyzing [section] 504 of the Rehabilitation Act of 1973 which is, in large part, incorporated by reference into the ADA).

(200) See Douglas M. Towns, What Internet Companies Must Know About the Americans with Disabilities Act, at http://www.gigalaw.com/articles/2000/towns-2000-12.html (last visited Nov. 2, 2002).

(201) John M. Floyd, Americans with Disabilities Act: Impact Upon Workers’ Compensation–Friend or Foe? A Primer for the Corporate Insurance Department and Outside Counsel, 17 AM. J. TRIAL ADVOC. 637 (Spring 1994).

(202) See 42 U.S.C. [section] 12112(5)(A)(1991).

(203) See 42 U.S.C. [section] 1211 l(a) (1991)

(204) See Peter D. Guattery, New Technologies, New Liabilities–Employment Law in the Information Age 33 MI). BJ. (May/June 2000)

(205) See Carr v. Reno, 23 F. 3d 525, 530 (D.C. Cir. 1994) (applying the Rehabilitation Act, which is the ADA’s predecessor).

(206) See Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418 (N.D. Cal. 1996), aff’d, 191 F. 3d 1043 (9th Cir. 1999), cert. denied, 120 S. Ct. 1221 (2000).

(207) 169 F. 3d 1481 (7th Cir. 1999).

(208) Id.

(209) 44 F.3d 538 (7th Cir. 1995).

(210) Id. at 545

(211) 29 U.S.C. [subsection] 2601-2654 (1993). President Clinton signed the FMLA on February 5, 1993. It became effective on August 5, 1993. The Department of Labor enforces the FMLA. See 29 U.S.C. [section] 2617(b), (d), (e) (1993).

(212) See 29 U.S.C. [section] 2601 (a)(1) (1993) (stating that “the number of single-parent households and two-parent households in which the single parent or both parents work is increasing significantly”).

(213) Id.

(214) 29 U.S.C. [section] 261 l(2)(B)(ii)(1993).

(215) See id.

(216) Gabel & Mansfield, supra note 132, at 257-59.

(217) 29 C.F.R. [section] 825.11 l(a)(2) (2000).

(218) See 29 U.S.C. [section] 2612(a)(1) (1993).

(219) See id. [section] 2611(11)

(220) See 29 U.S.C. [section] 2613(e)(1) (1993)

(221) See 29 C.F.R. [section] 825.302(b).

(222) See 29 U.S.C. [section] 2612(b) (1993)

(223) See 29 C.F.R. [section] 825.203(b)(c)(1996).

(224) See id.[section] 825.203(c).

(225) See Gabel et al., supra note 190.

(226) See id.

(227) See Dawn R. Swink, Telecommuter Law: A New Frontier in Legal Liability, 38 AM. BUS. L.J. 857, 874 (2001)

(228) See Swink, supra note 227, at 875-76 (citing Arthur Lex Carson, Larson’s Worker’s Compensation Law [section] 13.01 (2000)).

(229) See id. at 876.

(230) See id. at 881-85.

(231) U.S.C. [section] 206(a) (1999).

(232) 29 U.S.C. [section] 207(a) (1999).

(233) It is critical that employers keep accurate employee work records. In an FLSA case where an employer did not meet this duty, employees simply need to produce sufficient evidence of the amount of work, and extent of work for which they were under-compensated, with a “just and reasonable inference.” Wirtz v. McClure, 333 F. 2d 45, 47 (10th Cir. 1993).

(234) 29 U.S.C. [section] 213(a)(1)(1999).

(235) 29 C.F.R. [section] 541(a) (2000). The Department of Labor regulations prescribe “short” and “long” tests for each of the white-collar exemptions. See 29 C.F.R. [subsection] 541.1-.3 (2000). The “long” tests apply to executive and administrative employees who are paid on a salary basis between $155 and $250 per week and professional employees who are paid on a salary basis between $170 and $250 per week. Id. The “short” tests, with fewer criteria, apply to executive, administrative and professional employees who are compensated on a salary basis at a rate of at least $250 per week. Id. An executive employee is one “[w]hose primary duty consists of the management of the enterprise in which he is employed … and [w]ho customarily and regularly directs the work of two or more other employees therein.” 29 C.F.R. [section] 541.1 (a)-(b). An administrative employee is one “[w]hose primary duty consists of … [t]he performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer’s customers,” 29 C.F.R. [section] 541.2(a), that requires “the exercise of discretion and independent judgment.” [section] 541.2(e)(2). Each element of the tests laid out in 29 C.F.R. [section] 541.1 must be met before the exemption can occur

(236) Rudolph v. Metro. Airports Comm’n, 103 F.3d 677 (8th Cir. 1996).

(237) 29 C.F.R. [section] 785.23 (2000).

(238) Id.

(239) Gaby v. Omaha Home for Boys, 140 F.3d 1184, 1887 (8th Cir. 1998).

(240) 29 U.S.C. [subsection] 151-169 (2001).

(241) Gabel & Mansfield, supra note 132, at 260-63.

(242) Martin H. Malin & Henry H. Perritt, Jr. The National Labor Relations Act in Cyberspace: Union Organizing in Electronic Workplaces, 49 U. KAN. L. REV. 1 (2000).

(243) Fred Feinstein, The Challenge of Being General Counsel, 16 LAB. LAW. 19, 40 (2000).

(244) 29 U.S.C. [section] 157.

(245) Id.

(246) Id.

(247) 29 U.S.C. [section] 452 (1993)

(248) See Weiner, supra note 247, at 779.

(249) See id.

(250) See id.

(251) See id.

(252) See Weiner, supra note 247, at 779.

(253) See id.

(254) See Feinstein, supra note 243, at 40

(255) See E. I. du Pont de Nemours & Co., 311 N.L.R.B. 893 (1993).

(256) Id. at 897.

(257) Id. See generally Elena N. Broder, Note, (Yet)Workers’ Rights: The NLRA And Employee Electronic Communications, 105 YALE L.J. 163 (1996).

(258) See Pratt & Whitney, NLRB Gen. Couns. Adv. Mem. Cases 12-CA-18446, 12-CA-18722, 12-CS-18863 (Feb. 23, 1998). In Pratt & Whitney, several employees formed the Florida Professional Association (Union). As part of the organizing campaign, employees sent or forwarded various e-mails to fellow employees involving information addressing such subjects as salaries, lay-offs, NLRB procedures, and unionization in general. Id. The Union also developed a web page and posted organizing information on the Internet. Id. The employees involved, some of whom were responsible for developing computer systems, spent an overwhelming majority of their work time on computers and communicated with each other primarily by e-mail. The employer had a written policy prohibiting the use of computer resources for non-business or personal purposes, but the policy had not been strictly enforced with regard to e-mail messages. See also Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)

(259) Miriam L. Fisher & Nicole Wynn, Independent Contractors and The National Labor Relations Act, at http://www.morganlewis.com/pdfs/2272b3d4-D220-4DB4-B29E47CA45C95 EA8_ publication.pdf (last visited Nov. 2, 2002).

(260) Malin & Perritt, supra note 242, at 2.

(261) Id.

(262) Id.

(263) 149 L.R.R.M. (BNA) 1302 (1995).

(264) Id. at 1303.

(265) Id.

(266) 29 U.S.C. [section] 651 (2001).

(267) See 29 U.S.C. [subsection] 651-678 (2001). See Frank Diehl Farms v. Sec. of Labor, 696 F.2d 1325 (11th Cir. 1983) (holding that OSHA has statutory authority to regulate where “the conditions to be regulated must fairly be considered working conditions, the safety and health hazards to be remedied occupational, and the injuries to be avoided work-related”).

(268) See 29 U.S.C. [section] 654.

(269) See http://www.osha.gov/oshinfo/strategic/pgl.html (last visited Nov. 2, 2002).

(270) Gabel & Mansfield, supra note 132, at 263-65.

(271) See Swink, supra note 227, at 863-72.

(272) See Linda S. Peterson, Long Arm: Does OSHA’s Rea& Extend to Employees Working at Home on Compaq-Provided Computers?, TN. B.J., Nov. 2000 at 14, 15. See Guattery, supra note 204.

(273) See Guattery, supra note 204.

(274) Id.

(275) See id.

(276) Linda S. Peterson, supra note 272

(277) 29 U.S.C. [section] 651(b)(1993).

(278) See Frank Diehl Farms v. Sec’y of Labor, 696 F.2d 1325 (11th Cir. 1983). OSHA has the authority to regulate home offices. Under the standard described in Diehl, OSHA has statutory power to regulate where “the conditions to be regulated must fairly be considered working conditions, the safety and health hazards to be remedied occupational, and the injuries to be avoided work-related.” In Diehl, the court deemed the housing of migrant workers subject to OSHA regulation if the workers were required by their employers to live there. Id.

(279) The Home-Based Worksites Compliance Directive (2-0-125) was issued on Feb. 25, 2000 and is available at http://www.osha.gov. See OSHA’s Home Office Debacle, supra note 276.

(280) Id.

(281) Id.

(282) Id.

(283) See http://www.osha.gov (last visited Nov. 2, 2002).

Number Percent Reason for Inspection

9,606 (26%) Complaint/accident related

18,343 (51%) High hazard targeted

8,401 (23%) Referrals, follow-ups, etc.

Number Percent Industry Sector

19,507 (54%) Constrtlction

8,536 (23%) Manufacturing

8,307 (23%) Other industries

(284) The first incident involved an employee who worked at home in Alabama casting lead head jigs for fishing lures, pouring and trimming the jigs at her kitchen table. The second home investigation was instigated by employee complaints to OSHA after their Colorado electronic capacitor plant was closed upon an OSHA inspection finding high blood lead levels. Employees then took work home. After the complaints, OSHA investigated three homes, where it found that workers were handling dangerous adhesives without gloves, risking liver damage or cancer, and using unguarded crimping machines, risking amputation.

(285) See generally H.R. 3530, 106th Cong. (2001)

(286) See Peterson, supra note 272.

(287) Id.

Joan T.A. Gabel, Associate Professor of Legal Studies, Risk Management and Insurance Department, J. Mack Robinson College of Business, Georgia State University.

Nancy R. Mansield, Associate Professor of Legal Studies, Risk Management and Insurance Department, J. Mack Robinson College of Business, Georgia State University.